Justice Committee on June 1st, 2010

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Based on research we have done, precisely for the purpose of today's meeting, I will read you this: [Translation] "However, there do not seem to be any major victim assistance organizations that deal exclusively with young people." Here, we are studying a bill that relates to young people. Do you know of organizations...

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

A point of order, Mr. Chair.

Could we get access to the documents quoted by Mr. Petit? I think he has appeared as counsel often enough in his career to know that when you want to quote a document to a witness, the other parties have to be able to consult the document in question, so they can determine whether there are other explanations in it.

[The Chair, Conservative, Ed Fast]

I believe that at this point in time Mr. Petit has the floor. He's entitled to ask questions as he wishes.

If the witnesses refer to documents, certainly we can request that they provide them.

Mr. Petit, would you please finish? You have a minute and 15 seconds.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Was I not interrupted by that comment, Mr. Speaker?

[The Chair, Conservative, Ed Fast]

Yes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

In view of your job, do you personally know, in Quebec or the Outaouais, any organizations that deal exclusively with victims who are young persons?

[Yves Laperrière]

No. I referred to our main partners, in the Outaouais. In terms of organizations operating elsewhere in the province, I am not an expert on that subject.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Laperrière, clause 21(2) of the bill reads as follows:

(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.

Do you approve of that amendment?

[Yves Laperrière]

Excuse me, I had trouble understanding you.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

We are proposing the following in the bill.

[The Chair, Conservative, Ed Fast]

Please slow down. Our interpreters are not keeping up.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Excuse me. It's just that I only have seven minutes. The bill says:

(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.

Do you approve of that amendment?

[Yves Laperrière]

Yes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Do you know what the situation was, that is, before this section was drafted?

[Yves Laperrière]

I am not a lawyer. I would have to be able to do a comparison.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

No, but you work in the field of law. This is the law that affects your work, is it not?

[Yves Laperrière]

I work with young people. We have a legal section that handles the legal aspects.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

So you can't tell us anything on that subject.

[Yves Laperrière]

I would have to reread the clause, so I could do a comparison.

[The Chair, Conservative, Ed Fast]

Thank you.

We're at the end of our questioning.

I want to thank each one of our witnesses for appearing. I wish we had more time, but we don't.

We're going to take a break, just for five minutes, to allow you to leave and allow the next panel to set up.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

We're pleased to have with us on our second panel a number of different groups.

First of all, we have the Barreau du Québec. Representing them we have Nicole Dufour, Dominique Trahan, and Carole Gladu, all of them counsel.

Then we have the Regroupement des organismes de justice alternative du Québec, represented by Serge Charbonneau.

We also have the Criminal Lawyers' Association, represented by Michael Spratt. Welcome here.

Finally we have Jacques Dionne, professor, department of psychoeducation and psychology, Université du Québec en Outaouais. Welcome to you as well.

Why don't we begin with the Barreau du Québec.

Madame Dufour.

[Nicole Dufour, Lawyer, Research and Legislation Service, Barreau du Québec]

Good morning.

Thank you for your invitation.

With me is Dominique Trahan, a lawyer for 30 years and the director of the youth section of the Centre communautaire de Montréal, and Carole Gladu, a lawyer for 18 years and director of the youth and criminal section of the Centre communautaire juridique de la Rive-Sud.

We have opted to split the presentation among us. My colleague Ms. Trahan will begin.

[Dominique Trahan, Lawyer, Barreau du Québec]

Good morning. Thank you for your invitation.

The Barreau du Québec has some reservations regarding clause 1, about using a victim’s name, particularly when the victim is a minor, in the short title. We do not think it serves any purpose to use one name when the aim is to amend criminal legislation for all Canadian youth.

It is surprising that reference should be made to that teenager’s situation to support changes to the Act, as it was that Act, as currently worded, that made it possible to impose adult sentences where the evidence showed that an adult sentence was necessary. Ironically, for the various cases of young people charged with offences, the outcome was that an adult sentence was imposed where necessary, and where not necessary, the young person was sentenced to remain in the youth system.

The Barreau du Québec believes that the legislation is adequate and produces the desired effects. In this instance, application of the Act helped protect society and at the same ensured that youth were rehabilitated.

[Carole Gladu, Lawyer, Barreau du Québec]

I am going to talk about clause 2.

The definitions of "serious violent offence" and "violent offence" are being amended.

We note that the new definition of violent offence will encompass a very large number of Criminal Code offences based on a “substantial likelihood of causing bodily harm”, a factor which the accused may not have even considered at the time the offence was committed.

Regarding serious offences, the list of offences that meet the criterion of an offence carrying a maximum sentence of five years is long. The number of offenders deemed to have committed a serious offence will be out of proportion and useless given the desired effects and the risk of the label “serious offender” influencing decisions made under sections 29 and 75 of the Youth Criminal Justice Act.

Now, the changes to the Youth Criminal Justice Act made by clause 3 of the bill raise the notion of public protection to the rank of principle. Rehabilitation and social reintegration become methods, whereas they are currently considered important principles guiding decisions made under the Act.

The Supreme Court of Canada has recognized the important of the declaration of principles, writing that principles should be given the force normally attributed to substantive provisions. Our fear is that changing this declaration represents a shift toward principles of criminal law applicable to adults, and here we are referring to section 718 of the Criminal Code.

The Barreau du Québec reiterates its support for the specificity of criminal law applicable to youth, which focuses on rehabilitation as a means of protecting the public over the long term. The proposed amendment does not include the notion of long-term protection of the public. The Barreau du Québec contends that the notion of "public protection" is linked to immediate protection of Canadians, not long-term protection that promotes rehabilitation and social integration.

The English version of the proposed new subparagraph 3(1)(a)(ii) uses the word "promoting", which is rendered in French as encourager. This subparagraph deals with social reintegration and rehabilitation. We suggests replacing encourager with favoriser, which is closer to the meaning of "promoting".

Finally, we note that the proposed change to paragraph 3(1)(b) reiterates the notion of “diminished moral blameworthiness or culpability” recognized by the Supreme Court of Canada in R. v. D.B.

Clause 4 relates to the proposed changes to subsection 29(2) of the Act is to incorporate certain paragraphs of section 515 of the Criminal Code.

The Barreau du Québec contends that in matters of pre-sentence custody as a consideration in sentencing, the court must have the means necessary to impose the right sentence at the right time. We believe that the current provisions of paragraph 39(1)(d) of the Act, which allow a judge to exercise discretion in extraordinary circumstances, should also apply in matters of pre-sentence custody. We believe that if this were to be done, the bill would properly address the concerns raised in the Nunn Report.

[Nicole Dufour]

Clause 7 of the bill adds a paragraph to subsection 38(2) of the Youth Criminal Justice Act stating that the objectives of the sentence may be "to denounce unlawful conduct" or "to deter the young person from committing offences". We would note that subsection 38(2) establishes the objectives and principles of sentencing. This import from the Criminal Code is contrary to the objective advocated by the Barreau relating to the special nature of the criminal law that applies to young people.

We note also Parliament's desire to include in section 3 of the Act the notions of denunciation and deterrence. Serious studies have shown that using sentencing as a deterrent has no effect on crime.

Clause 8 of the bill amends paragraph 39(1)(c) by adding extrajudicial sanctions as elements to be considered in imposing a custodial sentence. The Barreau du Québec is opposed to this addition for the following reasons. First, extrajudicial sanctions are applied in cases where the youth acknowledges the facts of the offence. The youth thus receives special treatment: an extrajudicial sanction. This type of sanction has great potential in terms of rehabilitation given that the youth recognizes the facts. The Barreau contends that adding this item to the list of factors the court must take into account in imposing a custodial sentence will cause the benefit which extrajudicial sanctions are intended to bring to be lost.

Further, adding extrajudicial sanctions to the list of factors to be considered will have the effect of bringing into court a measure that was designed to avoid court proceedings. The Barreau is of the opinion that the distinction between extrajudicial sanctions and sanctions imposed upon conviction must be preserved. Only the latter should be considered by the court in imposing a custodial sentence.

Currently, pre-sentencing reports do not mention extrajudicial sanctions longer than two years under section 119 of the Act. Would that time period be applied in the context of the changes to paragraph 39(1)(c)?

Finally, the Barreau would like to see all means available to facilitate rehabilitation—including extrajudicial sanctions—used before an adolescent is placed in custody. Does changing the consequences of this type of sanction create a risk of this option—which has great educational potential for the adolescent—being underutilized?

Clause 8 of the bill proposes that the Attorney General be required to notify the court of his or her intention not to seek an order that the young person be liable to an adult sentence in cases where "the offence is a serious violent offence and was committed after the young person attained the age of 14 years". It provides that "the lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of" that obligation.

The Barreau has always opposed any form of intrusion in the professional independence of prosecutors. We contend that notice preceding an application for an order must be given in order to serve the cause of justice and allow the parties to act accordingly. The prosecutor’s decision to not seek an order has no function that would justify giving notice to the court.